Opinion
01-19-2017
George SYLVESTER, Plaintiff–Appellant, v. Emilio VELEZ, Defendant–Respondent.
Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant. Marjorie E. Bornes, Brooklyn, for respondent.
Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant.
Marjorie E. Bornes, Brooklyn, for respondent.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 22, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff pedestrian testified that he was struck by defendant's vehicle while crossing the street within the crosswalk, but conceded that he did not have the right of way when he entered the street (see Santo–Perez v. Enterprise Leasing Co., 126 A.D.3d 621, 3 N.Y.S.3d 607 [1st Dept.2015] ; Vehicle and Traffic Law § 1112 ; 34 RCNY 4–04[b][2] ). Nevertheless, when viewing the evidence in the light most favorable to plaintiff, triable issues of fact exist as to the relative positions of plaintiff and defendant at the time of the accident, and whether defendant could have seen plaintiff before the accident and failed to exercise due care to avoid the accident (see Santo–Perez, at 621, 3 N.Y.S.3d 607 ; Moreira v. Ramos, 95 A.D.3d 561, 944 N.Y.S.2d 87 [1st Dept.2012] ; Romeo v. DeGennaro, 255 A.D.2d 208, 680 N.Y.S.2d 235 [1st Dept.1998] ; Vehicle and Traffic Law § 1146 ).
ANDRIAS, J.P., SAXE, FEINMAN, GISCHE, KAHN, JJ., concur.